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Reflections on Australian Legal History with a Supreme Court Judge

Monday 30 May, 2016

When Supreme Court Judge The Hon Justice Geoff Lindsay spoke at Warrane on Wednesday 20 April 2016, he shared some fascinating insights into Australia’s legal history.

In a wide-ranging talk that touched on his own legal career as well as the importance of Australia’s legal system, Justice Lindsay confessed to being passionate about Australian legal history. To the amusement of the audience, he said he would probably keep speaking about the subject even if everybody got up and left the room.

Raising the question of the date at which Australia became legally independent from Britain, he surprised his listeners by pointing out that it was only in 1986.

“At 4pm eastern standard time on March 3,1986, we became legally independent from the Brits,” he said. “When I talk to people about this I always say one of the most marvelous things about this country is we really don’t care much about independence day, or whatever, because nobody has ever suggested that we have a public holiday on the third of March each year. They just won’t be in it. And yet that is the one date that is significant.”

Pointing out that this year marks the 30th anniversary of Australia’s legal independence, JusticeLindsay said there was nothing about it in the newspapers.

“The law has all these quirky sides to it,” he said. “It is part of who we are, and why we are not somebody else."

"The Americans have their Independence Day, and other people do. They get all very excited about it. Our saving grace is that we don’t know and we don’t care. Most of us will have a lump in the throat when it comes to Anzac Day. But we don’t care two hoots about the 26th of January."

“When I was stumbling upon this a few years ago, I realised there is probably somebody sitting in some government office somewhere who says, lining the year up, we need a holiday at this time, and at this time and so on, so you get a holiday every so often."

“But it just happens that the 26th of January is there. It doesn’t matter that it causes deep offence to Aboriginal people, who keep saying it causes offence. We are supposed to be very considerate to our Aboriginal brothers and sisters, but we still hang on to the 26th of January. We actually make it a lot worse, because there was a time, before 1988, when we had an Australia Day weekend. That you could understand, because every year you got the Monday off as well as Saturday and Sunday, and a truly nationalistic Australian could understand that."

“But a truly nationalistic person cannot readily understand having Saturday and Sunday off, then back to work on Monday, and we then we get Tuesday off. That does not make any sense at all.”

Justice Lindsay said that, in 1988, Australians noticed that Americans always celebrated their Independence Day on the day of their independence, and decided to follow suit.

He pointed out that Australia didn’t even start celebrating Australia Day at all until about 1930.

“As you progress in your careers,” he said, “you will be called on to decide what your generation makes of it all. At least in some of these things, I hope that you do better than my generation.”

One of the most significant things about Australia after 1986, Justice Lindsay said, was that for the first time in its history Australia had a whole range of people who had to make decisions about the law for Australians.

“I am not being anti-British about this at all, but before 1986 there was always the possibility that we would have to follow someone who had authority over us - the Privy Council or whatever.

“After 1986, we have ... a High Court that has to make final decisions for Australians. We have to ask ourselves: ‘What should the law be for Australia?"

“Yes, it’s a head start to have this wonderful British tradition to guide us, but we can’t hide behind that now. We have to make up our own minds."